Case Overview, Over-the-Counter Derivatives
This document provides background information and summarizes the debate over
governement regulation of over-the-counter derivatives. The links to the left
will lead you to public documents that we have found.
Derivatives
are complex financial instruments that are widely used in a broad variety of
business markets. They are a way a trader of some commodity can reduce the inherent
risks involved in any market where prices can swing quickly and broadly because
of changing business conditions. For example, suppose a company in the United
States purchases goods from a Japanese manufacturer and that manufacturer needs
three months to prepare the product and then ship the goods to the United States.
Say the contract specifies that the manufacturer won't be paid until the goods
arrive in the United States and that the United States importer will pay the
bill in yen (the Japanese currency). But what happens if in that intervening
three months the yen rises in value against the dollar? Such a change in currency
valuations means that it will now take more dollars to purchase the amount of
yen owed to the Japanese manufacturer. This alteration in the yen-dollar relationship
could conceivably wipe out much of the profit anticipated by the American company.
The way the American company can protect itself is to buy a currency derivative
that will compensate it at predetermined rate if the yen-dollar valuation changes
significantly and adversely over a fixed period.
Derivatives have
emerged in a broad array of business markets, including interest rates, grains
and other agricultural products, precious metals like gold, and different forms
energy such as oil, gas, and electricity. Many companies specialize in trading
of these financial instruments, some of them quite esoteric, and the large financial
houses like Goldman Sachs and J.P. Morgan have departments that engage in derivative
trading. All of these derivative instruments are characterized by a high level
of mathematical complexity; computers not only do the number crunching but are
sometimes programmed to issue buy and sell instructions to brokers at lightening
speeds to take advantage of small movements in price. The result is that not
only is it difficult for people outside the brokerage industry to understand
how derivatives work, but it also makes it difficult for government to regulate
them.
In the wake of the
collapse of Enron, an energy company that built up a substantial business trading
energy derivatives, evidence emerged indicating that it used it electronic energy
trading network to manipulate the market for electricity. (Due to deregulation,
electricity contracts can be bought and sold by producers, middleman, and distributors.)
Evidence also indicated that the state of California overpaid for electricity
because market manipulations created an artificial shortage, driving up the
price for electricity not under long-term contract to distributors. California
Senator Dianne Feinstein introduced legislation in the 107th Congress designed
to bring unregulated derivatives under the jurisdiction of federal agencies.
The Feinstein bill
generated a furious lobbying campaign by the companies and industries that would
be brought under regulation. Organizations like the International Swaps and
Derivatives Association and the Bond Market Association initiated a campaign
to convince legislators that their particular market did not need government
regulation. Said one lobbyist "we made the argument . . . that there is
no need to regulate these particular instruments by any entities, because in
fact what you would do is have regulations imposed on them that would then prove
adverse to their efficient operation and they wouldn't be used." They end
result, he added, is that traders in an affected market would rely "on
some other financial instrument that may not be as efficient." In the end
the Feinstein bill never made it out of committee.